Corruption Law Enforcement Dilemma

Kompas/Heru Sri Kumoro

An activist from the Coalition of Anticorruption Civil Society shows a document after reporting Law and Human Rights Minister Yasonna Laoly to the Corruption Eradication Commission (KPK) for allegedly obstructing an investigation into a bribery case that has implicated Indonesian Democratic Party of Struggle (PDI-P) politician Harun Masiku at the KPK building in Jakarta on Thursday (23/1/2020). Yasonna allegedly gave false information by saying Harun was overseas. His statement contradicted information from the immigration office that Harun has been in the country since Jan. 7.

Currently, our legal world has been troubled by the case of Harun Masiku, who the Corruption Eradication Commission (KPK) has been unable to catch.

The legislative candidate from the Indonesian Democratic Party of Struggle (PDI-P) disappeared and caused a media war between the KPK and the top brass of PDI-P. The situation has also been enlivened by the case of alleged acceptance of bribes by former secretary of the Supreme Court Nurhadi, who is believed to hold the key to a Pandora’s box of criminality within the Supreme Court. A media war between legal advocates and the KPK is also occurring.

Both Harun and Nurhadi have been included on the most wanted (DPO) list. Harun was rumored to have been killed or hidden, while Nurhadi is rumored to be receiving shelter somewhere in Jakarta. The KPK as a law enforcement agency has threatened to prosecute those who protect DPO fugitives.

So far the communication between law offices and legal institutions such as the police, prosecutors and the KPK has not been going well. The legal institutions seem to be very superior, while the law offices are among the prisoners.

What exactly are the problems of the two cases, why are they so sexy, and what is the position of the advocates whose clients are included on the DPO list? Advocates are law enforcers, while law enforcement agencies are the police, prosecutors and the KPK. The advocates\' office is a partner of law enforcement agencies. However, so far the communication between law offices and legal institutions such as the police, prosecutors and the KPK has not been going well. The legal institutions seem to be very superior, while the law offices are among the prisoners.

Communication among law enforcers and between the advocates and KPK investigators or prosecutors is very taboo at present. Legal institutions still consider law offices to be the goal keeper that does not only defend and protect corruption suspects/convicts, but also impedes the process of proving the crimes. The broken communication between law offices and law enforcement agencies can be seen from the one-sided correspondence between the law offices and the legal institutions. For example, letters related to pending judicial proceedings are not usually answered officially by legal institutions, such as the KPK, which often causes misunderstandings.

KOMPAS/HERU SRI KUMORO

General Elections Commission (KPU) commissioner Wahyu Setiawan, wearing a detention vest, sits in a car ready to transport him to detention on 23 Jan. 2020 at the Corruption Eradication Commission (KPK). Wahyu was questioned as a suspect in a bribery case surrounding the replacement of a lawmaker from the Indonesian Democratic Party of Struggle (PDI-P).

The KPK always feels superior to an advocate because the KPK can use its authority to prosecute advocates for obstruction of justice, as happened to advocate Fredrich Yunadi, for example. Meanwhile, advocates cannot get protection behind the immunity rights of the Advocate Law if the defense and protection of clients is done in ways that violate the law.

What about clients who are on the DPO list? From the legal aspect, the suspects fail to show up because they do not believe in the existing law and often feel innocent.

Meanwhile advocates cannot force their clients to follow their wishes because they only act as legal counsel/advocates.

Can advocates be held accountable when their clients run away or are named as DPOs. We recently heard that the KPK searched an advocate\'s office in Surabaya to look for a DPO. Meanwhile advocates cannot force their clients to follow their wishes because they only act as legal counsel/advocates.

Law enforcement dilemma

Dealing with corruption cases and handling fugitive cases also becomes a dilemma in law enforcement. Why? Because many corruption suspects have been judged by the public before they can defend themselves. Many corruption suspects become fugitives because they are afraid they will not receive justice in our justice system. Not only will bad stories bee told about them, but stigma will also be attached to them and their families.

There are a number of fugitives from the KPK, but why are the cases of Harun and Nurhadi so sexy for the public at this time? Both are cases of alleged gratuity/bribery that have nothing to do with state financial losses. Why are we so excited? There are so many cases of corruption that result in billions, even trillions, of rupiah in state losses, that do not receive the attention of these two cases.

The hunt for Harun and Nurhadi has become an interesting topic to discuss. If we discuss these two cases from a legal perspective, both are accused of the same type of offense. Both are also on the DPO list, meaning their whereabouts are currently unknown.

The KPK recently said that if Harun and Nurhadi were not found, it would considers trying their cases in absentia. If this is true, it would be a pity for Harun who has been declared missing and even fired from his party before he could defend himself or appoint a legal advisor to defend him after being accused of bribing a member of the General Elections Commission (KPU). The failure of the KPK’s search has resulted in a lot of speculation. The information provided by authorities about Harun\'s whereabouts has also been confusing.

Even though the KPK has named Harun a suspect, for us, Harun is missing. There were many cases of forced disappearances in the past, although under different circumstances. It is feared this could have happened Harun, meaning the one who accepted bribes is punished, but the briber could not be found. We don\'t think this is the goal of our law enforcement. Therefore, we can say the state has failed to protect its citizens.

KOMPAS/HERU SRI KUMORO

Anticorruption Civil Society Coalition activists leave the Corruption Eradication Commission (KPK) building, Jakarta, after reporting Law and Human Rights Minister Yasonna Laoly to the KPK on suspicion of inhibiting and interrogating investigations related to bribery cases implicating a former legislative candidate from the Indonesian Democratic Party of Struggle (PDI-P), Harun Masiku, Thursday (23/1/2020).

New approach

In line with the change in the leadership of the KPK, it is also necessary to change the style to a new approach according to the vision and mission of the new KPK commissioners. It is not only a paradigm shift in the exercise of authority, but also a paradigm shift in procedural law toward a more ethical and humane model of examination of suspects or witnesses, that does not rely on intimidation and threats to get evidence.

With the opening of the SP3 (investigation termination warrant) opportunity, the naming of a corruption suspect must be tightened up with primary evidence, not by mere assumptions or indications. This is because indications must be distinguished from evidence of indications. The evidence of indications must still be formed from the correspondence between witness statements, defendant statements and letters. Evidence of indications should only be used in the verification of the cases not for the determination of a suspect. Therefore, the establishment of sufficient preliminary evidence should no longer involve clues or evidence of indications, only premium evidence, namely witness statements and letters.

The truth cannot only be seen from witness statements, but also other evidence, especially witness testimonies in court.

A new approach is also needed for interrogation. The suspects and witnesses must be able to provide information freely without pressure. If examined under threat and coercion, that information will definitely change before the court. If suspects and witnesses are treated properly, they will be able to provide information freely and as truthfully as possible, including those who are truly guilty. The truth cannot only be seen from witness statements, but also other evidence, especially witness testimonies in court.

On the other hand, the KPK and other legal institutions also need to establish good communication with advocates, especially law offices, to forge a trusting relationship as strong as the trust between clients and advocates. The goal is the same, upholding truth and justice. If correspondence and verbal communication can be fostered to ensure smooth investigation and trial hearings, it is very good for law enforcement.

The relationship between law enforcers, especially advocates, and legal institutions has been like a damaged tap, from which water does not flow. We need to fix the tap to enable the water to flow properly. The communication between advocates and law enforcement agencies, such as the KPK and prosecutors, needs to be improved so that truth and justice can be upheld.

The dispute between advocates and law enforcement agencies, such as the KPK or the prosecutor\'s office, can only occur and be resolved before the court, not through media disputes or media wars that confuse people, who eventually become fearful and distrustful of law enforcement and choose to run away because they see that even law enforcers disagree various aspects.

Amir Syamsudin, Former Law and Human Rights Minister